COURT FILE NO.: 217/09
DATE: 20090715
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederman, Swinton and van Rensburg JJ.
B E T W E E N:
HEIDI BAGGS (by her Litigation Guardian, Michelle Lundy)
S. Simser, for the Applicant
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF EDUCATION
S. Blake and E. Bala, for the Respondent
Respondent
HEARD: At Toronto, June 15, 2009
van Rensburg J.
Nature of the Proceedings
[1] Heidi Baggs, by her mother and litigation guardian Michelle Lundy, brought this application for judicial review of a decision made by the Provincial Schools Admission Committee (the “Committee”) on December 18, 2008, denying Heidi’s application for admission to Sir James Whitney School for the Deaf in Belleville, Ontario (the “School”).
[2] The applicant seeks an order quashing the Committee’s decision and ordering that Heidi be admitted to the School. In the alternative, she seeks an order remitting the matter back to a differently constituted committee for consideration with the Court’s directions.
Relevant Statutory Provisions
[3] Section 13 of the Education Act, R.S.O. 1990, c. E.2 (the “Act”) provides for the continuation of schools for the deaf, the making of regulations in connection with such schools and the appointment of a committee to determine any question concerning eligibility for admission to such schools as follows:
- (1) The Ontario School for the Deaf for the education and instruction of the deaf and partially deaf is continued under the name Ontario School for the Deaf...
(4) Subject to the approval of the Lieutenant Governor in Council, the Minister may establish, maintain and operate one or more additional schools for the deaf or schools for the blind.
(7) Subject to the approval of the Lieutenant Governor in Council, the Minister may, in addition to his or her powers under section 11, make regulations with respect to schools continued or established under this section,
(a) prescribing the terms and conditions upon which pupils may,
(i) be admitted to, and remain, in a school,
(b) authorizing the Minister to appoint a committee to determine any question concerning the eligibility for admission of an applicant.
[4] A regulation under the Act, Ontario Schools for the Blind and the Deaf, R.R.O. 1990, Reg. 296, provides for the admission of a student to a designated school for the deaf (including the School) as follows:
3.(1) Where an applicant who is not an Indian, or the parent of such applicant, submits to the Superintendent evidence satisfactory to the Superintendent that,
(a) the applicant will be under the age of twenty-one years on the first day of the school year for which he or she seeks admission;
(b) because of a visual or an auditory handicap, or both, as certified by a legally qualified medical practitioner, the applicant is in need of a special educational program in the School;
(c) if the applicant is under eighteen years of age, the applicant’s parent is a resident of Ontario; and
(d) if the applicant is eighteen years of age or over, the applicant is a resident of Ontario,
the Superintendent shall, subject to subsection (2) and subsection 8(1), admit the applicant to the School.
(2) An applicant who is qualified to be a resident pupil of a board that operates a day class for the hearing impaired that would be appropriate to the applicant shall not be admitted to an Ontario School for the Deaf except where in the opinion of the Minister the admission is in the best interests of the applicant.
8.(1) An applicant shall not be admitted to a School if he or she is unable to profit from instruction in a program at the School.
(2) Where, in respect of an applicant, doubt exists as to whether,
(a) evidence submitted under clause 3(1)(b) establishes that the applicant is in need of a
special educational program; or
(b) the applicant is able to profit from instruction in a program, at the School,
the admission of the applicant may be for a trial period.
(3) Upon the request of the Superintendent, or of the parent of an applicant, or of an applicant who is eighteen years of age or over, the Minister may appoint a committee to hear and determine any question concerning the eligibility for admission of the applicant.
[5] Section 170 of the Act requires every school board to:
(6) provide instruction and adequate accommodation during each school year for the pupils who have a right to attend a school under the jurisdiction of the board;
(7) provide or enter into an agreement with another board to provide in accordance with the regulations special education programs and special education services for its exceptional pupils.
Facts
i. Heidi’s Condition and Challenges
[6] Heidi was born April 11, 2002 and she is seven years old. She has recently completed Grade One at a local public school in Kingston, Ontario. Her parents began the application process for her admission to the School while she was in kindergarten.
[7] As an infant Heidi was diagnosed with complete agenesis of the corpus callosum, which is a developmental brain malformation. At the age of seven months, she was seen by Dr. Peter Humphreys, a neurologist, who confirmed the diagnosis and noted that the developmental implications of this condition could not be predicted.
[8] Heidi had severely delayed language development and by the age of six was still only able to produce words of single syllables. Her responses to sounds were inconsistent.
[9] On April 12, 2007, Heidi was examined by an audiologist at Hotel Dieu Hospital in Kingston. The audiologist’s report indicated that Heidi had profound hearing loss in her right ear, and the findings in the left ear ranged from “possible mild” to “severe” to “profound”.
[10] Shortly after receiving the audiologist’s report, Heidi’s mother took classes in American Sign Language (“ASL”) and sought to enrol Heidi in the School, where the primary language of instruction is ASL.
[11] Contact with an ASL Family Advisor was initiated in June 2007 and weekly visits followed to provide instruction and support in ASL. An itinerant teacher of the deaf and hard of hearing, Eva Carlin, was assigned to Heidi in January 2008 by the local school board.
[12] Heidi’s program in her regular school was adapted in kindergarten and Grade One, to provide for an ASL educational assistant (“EA”). The Individual Education Plans pursuant to O.Reg. 181/98 Identification and Placement of Exceptional Pupils (the “IEPs”) for each year prepared within her school identified Heidi’s use of ASL in the classroom. At home, all members of Heidi’s family, including her three brothers, learned ASL and her parents were pleased with the apparent dramatic progress in her ability to communicate assisted by ASL.
[13] On August 1, 2007, Heidi was seen by Dr. Heather MacKinnon, a speech language pathologist at the Child Development Centre in the Hotel Dieu Hospital. Dr. MacKinnon assessed Heidi’s auditory comprehension and expressive communication skills. She noted that while Heidi occasionally communicated verbally, she consistently omitted the first consonant of words and used primarily gestures and sign language to get her message across. While she appeared to have responded well to sign language, her vocabulary was limited for her age. Overall, she had receptive and expressive language skills below what was expected for a child of her age, that Dr. MacKinnon noted may be partially linked to hearing difficulties related to her auditory neuropathy. She stated that it was positive that Heidi appears to have responded well to sign language and encouraged her mother to continue pursuing sign language with Heidi. Heidi was discharged from the speech and language services at the Child Development Centre as she was “currently well supported by Sir James Whitney School with regards to communication development”.
[14] Heidi was assigned an itinerant teacher of the deaf/hard of hearing, Eva Carlin, who visited her on 11 occasions commencing in January 2008. While initially a signing only approach was used, Heidi benefited from a Total Communication approach (a method for educating the hearing impaired that combines other modes of communication with sign language).
[15] On January 25, 2008 Heidi was examined by an audiologist at Hotel Dieu Hospital. The report stated that she had normal peripheral hearing and middle ear function on the day of the test.
[16] Heidi was seen at the Child Development Centre at the Hotel Dieu Hospital in January 2008. As part of an inter-disciplinary assessment, she was seen by Dr. R. Garth Smith, a Developmental Paediatrician and Medical Director of the Centre. Dr. Smith noted that, since her last visit, she had been tentatively diagnosed with possible profound hearing loss, most likely of a sensorineural type. He was “absolutely thrilled” with her progress and stated, “despite having what appears to be a significant hearing deficit, she has progressed to almost complete use of signing gaining in excess of six hundred ‘words’ and has made many other strides also”.
[17] Janet Casali, a speech and language pathologist employed by the Ministry of Education (the “Ministry”), was asked by Doug Mohun, resource consultant at E.C. Drury School for the Deaf in Milton, to observe and assess Heidi. She attended at Heidi’s school on March 26, 2008 and issued a report dated April 9, 2008 (the “Casali Report”). Ms. Casali concluded that Heidi benefited immeasurably from a structured total communication environment, with certain characteristics that “should be an integral part of any educational programme for Heidi in any setting”. Ms. Casali noted that Heidi used mainly signs and gestures to communicate. Her speech was unintelligible without known context. She had significant behavioural challenges. Ms. Casali noted that Heidi had been diagnosed with “developmental issues” and presents with “autistic features”.
[18] On April 21, 2008 Heidi was examined by an audiologist at Hotel Dieu Hospital and her hearing was found to be within normal limits.
[19] In a report dated April 21, 2008, educational resource consultant Doug Mohun described his observations of Heidi in her classroom on January 16, 2008 and March 26, 2008 (together with Ms. Casali). Heidi had a signing EA and, when she left the classroom, a non-signing EA who used a combination of voice, gestures and tapping to communicate with Heidi. Mr. Mohun noted that Heidi responded to a combination of oral and signing communications. There were instances of “tuning out” and various attention getting manoeuvres were required to get Heidi’s attention to any signed or oral conversation. Mr. Mohun found in his own interactions with Heidi that she was more responsive when voice was combined with signing.
ii. The Initial Refusal to Admit Heidi to the School
[20] On May 21, 2008, Heidi’s parents attended a meeting at the School with Cheryl Zinszer, the Superintendent of Provincial and Demonstration Schools, Ministry of Education (“the “Superintendent”), Doug Mohun, Jan Casali and Bill Thompson, who at the time was the Principal of Resource Services at the School.
[21] The Superintendent was informed by Mr. Mohun that two recent audiological reports indicated that Heidi had normal hearing and therefore did not meet the criteria for admission. The Superintendent also received the written reports of Mr. Mohun and Ms. Casali from their observations of Heidi in a school setting.
[22] At the meeting of May 21st, Heidi’s parents were informed that their daughter did not meet the criteria for admission to the School because, although a prior audiological report indicated an auditory handicap, the most recent audiological reports indicated normal hearing. The medical evidence failed to demonstrate an auditory handicap certified by a medical practitioner. Heidi’s parents were advised that a central auditory processing deficit is not a hearing loss. They were advised that Heidi did not meet the criteria for admission because, pursuant to Regulation 296, they did not provide evidence satisfactory to the Superintendent that Heidi suffers from a hearing loss. Rather, the evidence demonstrated that Heidi had normal hearing.
[23] On May 21st, after the meeting, Heidi’s father sent an email to the Superintendent stating that he did not agree with some of the statements contained in the Casali Report and he requested that this report and the report of Mr. Mohun not be shared with the school board, Heidi’s school or Eva Carlin. Mr. Baggs in particular took objection to Ms. Casali’s references to possible autism which had been ruled out and her repeated references to developmental delays, many of which had been overcome. He was of the view that Mr. Mohun’s report was missing much pertinent information.
[24] The decision that Heidi did not meet the criteria for admission to the School, as well as the agreement not to share the reports with the board without written consent were confirmed by the Superintendent by letter to Heidi’s parents dated August 11, 2008.
iii. Further Reports on Heidi’s Condition and Progress
[25] In June 2008, a report on Heidi’s progress was issued by Eva Carlin, together with her year end report card from her school. The report confirmed Heidi’s progress in her ability to focus and to pay attention. She was signing about 110 words in January with an additional 140 in June. A total communication approach encouraged better participation.
[26] On August 21, 2008, Heidi was examined again by the neurologist, Dr. Peter Humphreys. His consultation note to Dr. Smith noted that Heidi’s problem was primarily one of central auditory processing. Her responses to sound remained very inconsistent, and at times she behaved like a deaf child. Dr. Humphreys noted that many of Heidi’s educational supports that have been based on her being deaf have now been withdrawn, and that her parents were concerned that she would eventually lose the ability to sign if it was not reinforced. Dr. Humphreys noted that “the inconsistency in her auditory responses suggests the possibility that she may not have a peripheral auditory problem, but a form of word deafness. One possibility that needs to be considered is that of word deafness secondary to an epileptic disorder”. He recommended further evaluation. He concluded:
Meanwhile, notwithstanding the eventual results of an auditory evaluation..., it appears clear that Heidi has been able to learn a significant number of ASL signs so that she is now able to communicate much more than in the past. Whether this state of affairs is secondary to peripheral nerve deafness or to central word deafness, to my mind, makes very little difference. If she significantly benefits from teaching using ASL, this should be continued whether or not Heidi is attending a school for the deaf. I recognize that the latter may not be possible outside the school for the deaf, perhaps the main critical problem in Heidi’s educational program at the present time. As you know, children with fairly classical autistic disorders sometimes learn preferentially to communicate using sign language. In Heidi’s case, however, I believe the situation is somewhat more complex in that she has a major developmental brain malformation, and a disorder that really fits a developmental language disorder than an autistic disorder.
[27] A further audiological examination on September 9, 2008 by Genevieve Bosse confirmed that Heidi has “normal hearing and normal speech detection”.
iv. The Decision of the Committee
[28] In October 2008, Heidi’s parents requested that the Committee re-examine the application for admission to the School under s. 8(3) of O.Reg. 296. The Committee’s decision was communicated by letter dated December 18, 2008. The Committee listed the documents that they had reviewed. They also confirmed that they had requested Jan Casali to present a summary of her observations from her visit of March 26, 2008 at the meeting. The Committee concluded:
The committee relies on the expert report of Genevieve Bosse, Audiologist, to draw its conclusion that Heidi does not have an auditory handicap. It is clear that Heidi is able to process language auditorily, although there is a significant delay in her receptive and expressive language skills.
It is our opinion that Heidi would be unable to profit from a placement in a Provincial School where ASL is the primary language of instruction. Therefore the committee must advise you that Heidi will not be admitted to the Sir James Whitney School for the Deaf.
Issues
[29] The issues raised by this application for judicial review are the following:
What is the standard of review of the Decision of the Committee?
Did the Committee err in failing to adequately weigh the evidence before it?
Was its decision nevertheless correct or reasonable?
Was there a denial of procedural fairness?
What is the appropriate remedy?
Standard of Review
[30] The applicant submits that the standard of review for this administrative tribunal should be correctness. While the applicant characterizes the issue under review as a question of mixed law and fact, she submits that the committee appointed by the Minister has no expertise in determining the eligibility of special education students under “auditory handicap”, no medical expertise and no specialized expertise in analyzing the qualifications of students.
[31] The respondent submits that the standard of review is reasonableness because the Committee’s decision was based on findings of fact. Under s. 3(1)(b) of Regulation 296, the Committee considered two questions of fact: whether satisfactory evidence was provided to demonstrate that Heidi suffers from an auditory handicap, and whether Heidi would profit from instruction at a School for the Deaf. The respondent submits that the determination of these facts requires expertise in interpreting audiological reports and other medical evidence, weighing conflicting medical reports, understanding the curriculum and culture of the School, and understanding that a Provincial School for the Deaf does not provide an environment to develop auditory skills.
[32] The Court was provided with very little information about the constitution of the Committee or the qualifications or expertise of its members, other than the fact that the Committee was ad hoc, and its composition may be made up of any professionals within the Ministry that the Ministry designates.
[33] The Committee’s function was to determine the factual issues of whether Heidi, because of an auditory handicap, is in need of a special educational program in the School, and, if so, whether she would be unable to benefit from a placement in the School. In the course of making this determination the Committee was required to interpret the admissions criteria, including the meaning of “auditory handicap”, and to consider the evidence submitted to it in connection with the admissions criteria.
[34] The Supreme Court of Canada stated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 51, “questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness”. In this case the appropriate standard of review of the decision of the Committee is “reasonableness”.
[35] With respect to questions of procedural fairness, the parties agree that the court must determine whether the appropriate rules of procedural fairness have been adhered to. “The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly” (London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.) at paras. 9 and 10).
Positions of the Parties
[36] The applicant contends that the Committee failed to properly consider and weigh the evidence that was before it. The Committee ignored Dr. Humphreys’ diagnosis, that Heidi has a problem with central auditory processing, which he described as word deafness, and the ample evidence that Heidi benefited from ASL resources. The Committee failed to properly interpret the legal meaning of “auditory handicap” as including any disadvantage of or pertaining to the hearing or the organs or sense of hearing. The Committee, in relying on the audiologist reports, adopted an arbitrary and narrow definition of “auditory handicap” as “profound decibel loss”.
[37] The applicant contends that there were two serious errors by the Committee that constituted lack of procedural fairness or a denial of natural justice: first, it allowed a Ministry witness to appear before the Committee in the absence of the applicant and without giving an equal opportunity to the applicant to make submissions or to provide a witness, and secondly, it removed or overlooked key documents submitted by the applicant.
[38] The respondent submits that the Committee’s decision was reasonable. The applicant did not provide the Committee with a diagnosis from a medical practitioner that Heidi suffers from an auditory handicap. The medical evidence in the form of the audiologist’s report was to the contrary; that is, Heidi has normal hearing and normal speech detection. The respondent argues that a determination of the issues on this application does not require an assessment of whether the term “auditory handicap” includes an auditory processing disorder as the applicant has not supplied medical evidence to support such a finding.
[39] The respondent submits that the Committee’s conclusion that Heidi would be unable to profit from a placement at the School is reasonable, as the observations of Mr. Mohun, Ms. Casali and Ms. Carlin demonstrate that Heidi does not benefit from instruction exclusively in ASL, and benefits considerably when ASL and spoken language are used together. A school for the deaf that would provide instruction in ASL exclusively would not afford Heidi the opportunity to develop her auditory skills. The preferable approach is for Heidi’s school board to continue to accommodate her needs through a full-time signing EA and the involvement of an itinerant teacher of the deaf and hard of hearing.
[40] The respondent contends that the process followed by the Committee complied with the rules of natural justice and that any procedural errors which may have occurred do not warrant overturning the decision of the Committee as there was no unfairness to the applicant and the result would have been the same.
Analysis
[41] In our view, the procedure adopted by the Committee in this case was unfair, and for this reason the decision must be set aside.
[42] The Committee did not have before it all of the documents that had been submitted by the applicant. Removed from the application package were Heidi’s IEPs dated June 20, 2008 and October 15, 2008. These reports clearly indicated the use of ASL in the classroom and Heidi’s progress in communication using ASL. Also removed was a website dictionary definition of central deafness. A website medical article on central hearing loss by Dr. Timothy C. Hains had been edited. There was no reason to exclude these documents or parts of documents, which were clearly relevant, from consideration by the Committee.
[43] The Committee invited Ms. Casali to attend in person to report on her observations of Heidi. The affidavit of the Superintendent Cheryl Zinszer, submitted in response to the application for judicial review, states that Ms. Casali reported her observations to the Committee orally, and that Ms. Zinszer was advised by Mr. Mohun that the verbal report was consistent with her written report. In argument it was suggested that the Casali Report had not been provided to the Committee because of the earlier “agreement” with Heidi’s parents not to circulate the report, notwithstanding that Mr. Mohun’s report, that was subject to the same understanding, was put before the Committee.
[44] Heidi’s parents had taken exception to the Casali Report for a number of reasons, including her inaccurate summary of Heidi’s medical condition. Whether or not Ms. Casali simply provided the information that was in her written report, her attendance before the Committee, without informing Heidi’s parents, and permitting them the opportunity to attend or to have another person attend as a witness, created an appearance of unfairness in the Committee’s process.
[45] Considering the Committee’s decision as a whole, there was a failure to give proper consideration to all of the evidence. The Committee appears to have relied solely on the report of an audiologist to conclude that Heidi does not have an auditory handicap. It did not explain what consideration or weight, if any, it gave to the other medical evidence, and in particular the report of Dr. Humphrey.
[46] We cannot agree with the submission by the respondent that the absence of a “medical certificate” indicating an auditory handicap would be conclusive. In a case such as Heidi’s, where a firm diagnosis of her disability had not yet been obtained, the function of the Committee was to evaluate the available medical evidence to determine whether Heidi had an “auditory handicap”. It was not sufficient for the Committee to consider only the audiological testing with respect to “hearing loss”.
[47] The Committee also failed to explain its conclusory statement that Heidi would be unable to profit from a placement in a school where ASL is the primary language of instruction. We agree with the submissions of the applicant that, once an auditory handicap is established, the placement will follow unless the Committee is satisfied that the applicant would not be able to benefit from the placement (see s. 8(1) of the regulation above).
[48] In argument the respondent suggested that Heidi benefited from a “total communication” approach, and asserted that instruction in the School would not use such an approach and would be exclusively in ASL. There was no evidence before the Court as to the methods of instruction in the School. The conclusion that Heidi would be unable to benefit from the placement is not obvious from the evidence that was filed in support of the application. Heidi’s parents were entitled to a more detailed explanation by the Committee of why and in what respect their daughter, with her particular needs and abilities, would be unable to benefit from a placement in a school for the deaf.
Conclusion
[49] The application for judicial review is allowed. The appropriate remedy is to refer the matter to a differently constituted committee for fresh consideration. It is not this Court’s role to make the admission decision as requested by the applicant.
[50] The new committee should have before it all of the documents that were submitted in support of Heidi’s application, including the documents that had been removed from consideration by the first committee. In the circumstances of this case, it would be appropriate for the committee to have at hand Mr. Baggs’ May 21, 2008 email response to the Casali Report and the report of Mr. Mohun.
[51] The new committee should consider all of the medical evidence that has been submitted in order to determine whether Heidi has an “auditory handicap”. The committee should consider Heidi’s own circumstances as well as the specific instruction available in the School to determine whether Heidi would be “unable to profit from instruction in a program at the School”. It may be advisable for the committee to have regard to s. 8(2) of O.Reg. 296, and to consider Heidi’s admission for a trial period if there is doubt as to whether Heidi is able to profit from instruction in a program.
[52] Finally, our decision should not be taken as precluding the parties from considering the application afresh in light of new information concerning Heidi’s condition and progress in school since the date of the original application.
[53] As agreed by the parties, there shall be no order as to costs.
van Rensburg J.
Lederman J.
Swinton J.
Released: July 15, 2009
COURT FILE NO.: 217/09
DATE: 20090715
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederman, Swinton and van Rensburg JJ.
B E T W E E N:
HEIDI BAGGS (by her Litigation Guardian, Michelle Lundy)
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF EDUCATION
Respondent
REASONS FOR JUDGMENT
van Rensburg J.
Released: July 15, 2009